To appeal or not to appeal your Long Term Disability Denial (Ontario)

Our law firm gets a variety of calls from people who have had their Long Term Disability claims denied.

These people have A LOT of questions about how to best proceed with their Long Term Disability Claim after their claim has been denied. Some of the questions our lawyers hear are:

What do I do now that I’ve been denied?

How can I fight the insurance company? Can I do so on my own?

Do I need a lawyer?

How much will it cost to get lawyer?

How long will it take to get my LTD benefits re-instated or have my case settle?

Why is the insurance company being so hard on me?

Are they like this to everyone?

All of these questions are certainly valid; understandably so. This is probably your first time applying for LTD Benefits. And it’s also probably your first time getting denied as well.

Our lawyers would be pleased to answer all of these questions, if not more, via free phone consultation toll free at 1-877-730-1777 or via email at info@goldfingerlaw.com.

The topic we wish to address in today’s installment of the Toronto Injury Lawyer Blog is the questions whether or not to appeal your Long Term Disability Claim. Whether to appeal, or not to appeal is a tactical move that shouldn’t be taken lightly.

Many claimants get confused by the ability to appeal an LTD denial. The confusion lies on what did the LTD claim first get denied? Was it the date of the initial denial; or was it on the date that the 1st, 2nd or even 3rd appeal was denied? You can see how this can be confusing for a person who is new to LTD claims.

There is a variety of case law in Ontario on this issue. What the Court wants to see from the LTD insurer, is a “clear and unequivocal denial“. This usually comes in the form of a denial letter from the insurer. Once that “clear and unequivocal” denial is established, the two year limitation period begins to run. Failure to commence your claim within two years from the date of receiving that “clear and unequivocal” denial will result in your LTD claim getting dismissed for delay.

But makes for a “clear and unequivocal denial” is often up to debate.

Insurers will take the position that the denial took place early, hence the sooner the limitation period will expire.

On the opposite end of the spectrum, an LTD claimant will take the position that “clear and unequivocal denial” was not properly established, thereby allowing the limitation period to either roll, or start at a much later date than argued by the insurer.

Plaintiffs often get confused because insurers because it’s common for insurers to offer the option to APPEAL a denied LTD claim. This appeal takes place internally, at a different level of the insurance company.

The claimant hopes that even though they were denied at the outset, that upon appeal, the denial will be reversed and that benefits will be paid.

In our experience, this rarely happens. That’s not to say that it doesn’t happen at all. It’s just that in a majority of LTD claims we have seen, the cases are NOT overturned on appeal.

There is a danger in appealing the claim. For starters, you are simply delaying your case and opening the door for the insurer to use that first denial as their early limitation period. If you appeal your claim not once, not twice, but three times, chances are that many years may have gone by since that first denial. An insurer may take the position that the “clear and unequivocal denial” was made when the LTD claim was first denied. That would allow an insurer to take a position like they did in Kassburg v. Sun Life Assurance Company of Canadawhere the insurer, Sun Life took the position that the Plaintiff started their claim out of time. While the Plaintiff was successful in this case, the opportunity presented itself to the insurer SunLife to take their argument for a dismissal all the way up to the Ontario Court of Appeal. This sort of approach offers a glimpse of the great lengths an insurer will go to in order to deny your claim before it even gets started.

The optics of the appeal are also important at trial. Every time which you appeal a claim with an LTD insurer, that appeal goes to a new person at the insurance company who supposedly provides their own, objective, fresh and new perspective on the case. How “objective” their findings are is certainly up to a Judge. Having said that, at trial, an insurer will be able to parade all of the people they’ve had look at the file in order to support their denial.

It becomes a more compelling argument for an insurer if they’re able to parade a claims handler, Level #1 Appeal Officer, Level #2 Appeal Officer and a Level #3 Appeal Officer to corroborate the denial, rather than just once claims handler. All of the Appeal officers will all likely provide the same, or similar findings in support of the denial. The appeal just allows the insurer to create a pattern of denials by different people in order to give the perception at trial for a Judge that the denial is justified. The optics of having 5 different people all supporting the denial can be difficult to overcome should your case proceed to trial. It also allows the insurer to further entrench their position such that once they’ve made up their minds, they won’t budge significantly in order to achieve an out of Court settlement.

When an insurer entrenches their position to deny, they will stop at nothing in order to defeat your claim. It’s not uncommon for insurers to arrange for surveillance on you tracking your every move to catch you doing something you shouldn’t be doing; or tracking you for that one image which will anger a Judge and make that Judge question your likeability or credibility. Insurers will send you for medical examinations with their own hired gun analysts to bolster their denial as well. Cyber surveillance via monitoring your Facebook, Twitter, Pintrest, Instagram or any other social media feeds is now common place in long term disability litigation. It’s all become fair game for the Courts when deciding these types of cases.